IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110016930 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a reevaluation of his medical evaluation board (MEB) and physical evaluation board (PEB) proceedings because they did not consider his conditions of traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD).

2.  The applicant states he was not evaluated for these conditions upon his return from Operation Iraqi Freedom or before in separation in 2005.

3.  The applicant provides documents associated with his MEB, PEB, and Department of Veterans Affairs (VA) disability rating documents.  In addition, he provides copies of his military orders; DD Form 2648 (Preseparation Counseling Checklist); DD Form 93 (Record of Emergency Data); Texas Veterans Commission Disability Checklist; DD Form 214 (Certificate of Discharge or Release from Active Duty); Enlisted Record Brief; Army Achievement Medal Certificate; promotion certificate; self-authored statement, dated 26 August 2010; letter from the Chief, Medical Staff, 39th Air Base Wing, U.S. Air Force Europe; Silver Star Citation for Captain A____ T. D____; and news articles relating to military operations in Samarra, Iraq.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 31 January 2002 and served in military occupational specialty 19K (Armored Crewman).

3.  The applicant's service medical records are not available for review; however, his personnel records show:

	a.  On 17 November 2002, he was treated for mild blunt head trauma at Darnell Army Community Hospital, Fort Hood, TX, after reporting he had been hit in the head by a large five-pound pole.  The medical officer indicated the laceration was superficial.  The applicant's wound was repaired with four staples and he was released for duty.

	b.  A DD Form 689 (Individual Sick Slip) shows he was treated for a head laceration to the forehead on 22 August 2003.  The remarks section indicates he was not to wear a Kevlar helmet for 72 hours and to return to the aid station for reevaluation on 25 August 2003.  There is no mention of how he sustained the head laceration.

	c.  The applicant reported suffering a head injury after being hit by a "C-pipe – Gas Head" in section 15 of his DD Form 2807-1 (Report of Medical History), dated 19 August 2004.  He also reported experiencing dizziness when doing neck rotations that eventually wore off and car sickness.

	d.  His DD Form 2808 (Report of Medical Examination) indicates his head, neurology, and psychiatric examinations were found to be normal.  This form lists his significant or disqualifying defects as ulcerative colitis.

4.  On 16 December 2004, he was issued a permanent physical profile for ulcerative colitis and referred for further evaluation by an MEB/PEB.

5.  A medical record attached to the MEB proceedings indicates the applicant's chief complaint was increased frequency of bowel movements with liquid stools mixed with blood and occasional clots over the last 5 months.  The MEB diagnosed him with ulcerative colitis and concluded his ability to perform his duties would depend on the activity of the disease and referred him to a PEB.

6.  On 10 January 2005, an informal PEB convened to evaluate the applicant's case.  The PEB assigned a 10-percent disability rating under the VA Schedule for Rating Disabilities (VASRD) code 7323 for ulcerative colitis on mesalamine therapy, rated as moderate, infrequent exacerbations.  The PEB recommended his separation with severance pay.

7.  He did not concur with the PEB findings and recommendation and demanded a formal hearing.

8.  On 17 February 2005, a PEB convened to conduct a formal hearing of the applicant's case.  After reevaluating all available medical records and the applicant's sworn testimony, the PEB rendered the same decision as in the informal PEB.  The PEB stated the applicant's medical impairment prevented reasonable performance of duties required by grade and military specialty and found him physically unfit.  The formal PEB recommended a 10-percent disability rating and separation with severance pay, if otherwise qualified.

9.  He concurred with the formal PEB findings on 25 February 2005.

10.  On 9 April 2005, he was honorably discharged by reason of physical disability with severance pay.  His DD Form 214 shows he completed 3 years, 2 months, and 9 days of active service.  It also shows he served in support of Operation Iraq Freedom from 7 April 2003 to 6 April 2004.

11.  He provides a VA Rating Decision, dated 8 July 2011, which states his service records confirms a head injury on 16 November 2002 with later complaints of headaches.  Also, he reported improvised explosive device (IED) exposures which were verified by a statement from Lieutenant Colonel G____.  The decision goes on to state:

	a.  Service connection of post-concussive cluster headaches due to TBI was granted a rating of 30 percent effective 19 November 2009.

	b.  Evaluation of PTSD with cognitive disorder due to TBI currently 50-percent disabling is increased to 100 percent.

	c.  Service connection of TBI was granted with a rating of 0 percent effective 19 November 2009.

12.  In a letter addressed to "Whom It May Concern," dated 26 August 2010, he contends he was injured during the multiple explosions that he endured during Operation Iraqi Freedom and his medical treatment shows he suffered frequent vomiting, severe nausea, and other issues.  In addition, he acknowledged these symptoms to the MEB on his DD Form 2807-1.  Unfortunately, he suffered through his symptoms for years and was diagnosed with TBI only after numerous appointments with multiple VA clinics.

13.  He provides a letter from the Chief, Medical Staff, 39th Air Base Wing, U.S. Air Force Europe, dated 2 October 2009.  In summary, the medical officer states the applicant is a combat veteran who was exposed in direct proximity to multiple explosions and extremely traumatic events during his 12-month deployment to Iraq.  He was suffering from tremendous PTSD symptoms, daily gastrointestinal symptoms, and neurological symptoms, which are thought to be associated with a TBI received during his deployment.  It was suggested that he and his spouse be reassigned to the local San Antonio area to begin therapy.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

	b.  This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  These guidelines are used to refer Soldiers to an MEB.

	c.  Appendix B provides guidance on the Army's application of the VASRD.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish an error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, a reevaluation of his MEB and PEB because his TBI and PTSD were not properly considered.

2.  He contends that although he identified his head injury at the time of his MEB examination, he was not evaluated for TBI or PTSD, conditions that the VA determined where service connected subsequent to his discharge.  The VA awarded him a 30-percent disability rating for post-concussive cluster headaches due to TBI and increased his 50-percent disability rating for PTSD with cognitive disorder due to TBI to 100 percent effective 19 November 2009.

3.  The evidence of record shows he did annotate a head injury he sustained when he was hit in the head with a "C-pipe" and that he experienced car sickness and dizziness when doing neck rotations.  However, the medical officer determined the applicant's head, neurologic, and psychiatric evaluations to be normal.  He was diagnosed with ulcerative colitis and referred to an MEB.  The MEB referred him to a PEB for a determination of fitness for duty based on this condition.

4.  Having initially indicated his nonconcurrence with the informal PEB findings and recommendation, he concurred with the formal PEB proceedings on 17 February 2005.  The PEB found his ulcerative colitis prevented the reasonable performance of his duties and determined that he was physically unfit for further military service.  The PEB rated his condition under the VASRD at 10 percent and recommended separation with entitlement to severance pay.

5.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.  Based on the available records, his head injury was not diagnosed as a TBI and there are no medical records to support that he suffered from PTSD.  Further, his head injury was not determined to be unfitting; therefore, it was not considered by either the MEB or PEB.

6.  It is acknowledged that medical conditions may worsen over time; however, the Army's rating is dependent on the severity of the unfitting condition at the time of separation.  The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting a disability rating.

7.  Lacking evidence to the contrary, the applicant's physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB.  There is no error or injustice in this case.

8.  In view of the foregoing, his request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110016930



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ABCMR Record of Proceedings (cont)                                         AR20110016930



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